Shepard Davidson

Discipline & Performance Management

When Massachusetts voters legalized the use of marijuana for medicinal purposes four years ago, the impact on most employers was limited to clarifying that “legal” marijuana use was still generally prohibited in the workplace. Now, Massachusetts has legalized limited use of recreational marijuana. Although the recreational marijuana use law also provides that employers may prohibit employees from reporting to work or performing work under the influence of marijuana, the new law is raising practical challenges for employers. Here are three ways that employers may consider changing what they have been doing:

1. Pre-employment Drug Testing

Many employers require job candidates to successfully pass a drug test as a condition to receiving a job offer. Prior to the legalization of marijuana, a positive test for marijuana use by a job candidate was an indication of illegal drug use and clear grounds for rescinding an offer of employment. Since legalization of medical and recreational use, from a legal standpoint, rescinding a job offer based on testing positive for marijuana use is still generally permitted. From a practical standpoint, however, the rationale that marijuana use is illegal no longer exists and brings into question the rationale for drug testing for marijuana at … Keep reading

As regular readers of this blog know, a day that is scheduled to be filled with relatively routine and non-controversial matters can get turned upside and require immediate action without any advance notice. One such situation occurs when information comes to light that an employee is unfit to continue in his or her current position and should be terminated. Even if in-house counsel and the business decision-makers have complete confidence that the information justifies termination, however, there is a risk associated with not giving the employee a chance to at least explain his or her actions.… Keep reading

It’s never easy to navigate the legal requirements when an employee has a medical condition or disability. One of the many complications is providing a “reasonable accommodation,” a process that often requires significant time and careful consideration of how and what medical information can be obtained and scrutinized.

In providing accommodations, some employers hesitate to relieve employees from certain “essential job functions” temporarily while the employee is recovering from a medical condition, or while it’s unclear how long a condition will last. Based on the First Circuit’s decision in Jones v. Walgreens, Inc., et al., however, relieving an employee temporarily from certain “essential job functions” does not require the employer to permanently eliminate those essential job functions from the employee’s job.

In Jones, plaintiff-employee Jones, a Walgreens store manager, had been on several leaves of absence from January 2004 to October 2005 after suffering a knee injury when she slipped on ice outside Walgreens’ office. In her second leave of absence, Jones indicated that she hoped to return to work with “reasonable accommodations.” Walgreens welcomed her back to work with some physical lifting, bending, squatting and twisting limitations. Twenty-two months later, in October 2005, Walgreens offered her … Keep reading

In my previous post, I shared three best practices for preparing for a potential employee termination. Here are two additional steps to consider in the termination process:

1. Prepare for possible exit interview scenarios.

Terminations are never easy and often become very personal. In most situations, the key is to conduct the termination meeting as respectfully as possible. In order to do so, it is advisable to have a plan addressing the following points:

a. Who will be at the meeting? Whenever possible, have two company representatives present, even if one is simply there to take notes. Consider security outside the room in those situations where the employee may become volatile.

b. What security measures will be taken while the employee is in the termination meeting? Consider placing limitations on or completely shutting off access to company e-mail, company credit cards and company computer systems. If the termination will not occur until a few weeks later, or transition is required from the employee, then completely shutting off access may not be the best course. Limiting access to certain areas of the computer systems may be appropriate.

c. What will be said? Have a very short introduction, convey the … Keep reading

Employment attorneys and in-house counsel are used to the 4 p.m. phone call informing them that an employee must be terminated “today,” followed by a request for a separation agreement or advice on how to handle the termination. More often than not, after asking a few questions we discover that, perhaps, the termination should be slowed down to ensure that we do it right. So, how should you prepare for a potential termination? Get started with these three tips:

1. Assess the reason for the termination.

Often, the reason given for terminating an employee is that he or she was not a “good fit” – a conveniently vague term that ranges from a host of legitimate business reasons to code for unlawful discrimination. Consequently, you need to drill down to what the real reason is for selecting this individual for termination at this time. Eligibility for unemployment benefits and continuation of certain other benefits, such as health insurance, may be dependent on the reason for termination.… Keep reading

With the new year, Massachusetts employers must add “gender identity” to the list of classes entitled to protection from employment discrimination and retaliation. What was touted as the “transgender rights” law in Massachusetts is, in fact, a “gender identity” law.

[A]person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.

This law allows employees to establish a workplace gender identity by providing their employer with evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or “any other evidence that the gender-related identity is sincerely held, as part of a person’s core identity.”

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Shepard Davidson

Shepard Davidson

Editor

sdavidson@burnslev.com Shep is a partner in and former Co-Chair of the Business Litigation practice at Burns & Levinson, as well as a current member of the firm's Executive Committee. Shep concentrates his practice in the areas of complex business torts, contract claims, real estate disputes, and employment disputes.

Kelly Kirby

Kelly Kirby

Contributor

kkirby@burnslev.comKelly Kirby is an associate in Burns & Levinson’s Litigation Group. She maintains broad experience practicing before state and federal courts in various jurisdictions, including trial, pre-trial settlement negotiation, mediation, and arbitration. She is adept at preparing litigation plans that provide clients with optimal go-forward strategies and an understanding of the risks and rewards involved with their case. Kelly most enjoys communicating these strategies to her clients, believing that a clear plan diminishes some of the unpredictability associated with litigation.

Gregory Paonessa

Gregory Paonessa

Contributor

gpaonessa@burnslev.comGreg Paonessa is an associate in Burns & Levinson’s Litigation Group. He focuses on risk management and assessment to aid clients in resolving disputes efficiently and economically, and with an eye towards potential impacts on their businesses in the short and long term. His experience growing up as part of a family business provides Greg with unique insights and understanding of the client’s point of view. Although his practice has focused on resolving claims against design professionals, his education and experience in business is always a guiding factor when he advises clients.